Jon Cruddas MP | Foreword to Judicial Power and the Left

The retreat towards the law and the continental constitutional separation of powers, and away from democracy and parliamentary sovereignty, have been very powerful tendencies within the left over the past fifty years. This collection of essays exposes this political detachment. In short, those who gave priority to procedural justice and utility defeated a stubborn attachment to the ancient Constitution and democratic authority that used to characterise the Labour tradition. This booklet, a startling and original collection of essays, indicates that Labour has the resources and imagination to re-assert its commitment to democracy and the painstaking work of building a democratic coalition that can deliver the sustainable parliamentary majority necessary for transformational politics.

The referendum vote to leave the European Union might well have provided the disruption necessary to upend what Danny Nichol calls the ‘general elevation of the unaccountable’ that is embodied in the EU, particularly after the Lisbon Treaty. In a superb essay on judicial power and the left, Mike MacNair defends the integrity of the mixed constitution based on the balance of powers within the frame of the common law as opposed to the separation of powers and judicial primacy that was embodied in the clamour for a written constitution and the supremacy of the EU. Alan Bogg’s essay develops this argument that ‘the common law may be the last refuge of the vulnerable’.

Chris Bickerton’s essay makes the argument that the growing interest in judicial power on the left was driven by electoral insecurity and the managerialism of social democracy. The law is a poor substitute for democratic politics but the experience of Thatcherism led broad sections of the left to ‘prefer the shelter of continental structures’, and the EU vision of Jacques Delors came as a godsend as it ‘made it possible for hitherto fundamentally political disputes to be sent up to the European Court of Justice and resolved as technical matters of compliance with European treaty law’. The majority of the Parliamentary Labour Party have lost faith in British Courts to defend liberties despite the evidence that they have been preserved over time in Britain while continental Europe experienced a variety of tyrannies. Bickerton argues that a market economy is one thing, but a market society is something else entirely, and the constitutional structure of the EU made resistance to that virtually illegal.

Helen Thompson’s essay pursues this argument with verve, pointing out that Labour’s acquiescence to a judicial managerialism, and to rights theory within the framework of the European Union meant that it was dispossessed of its fundamental history and meaning. As Thompson puts it:

As a consequence of the repudiation of this Eurosceptic heritage, Labour has been left to confront the wreckage of Britain’s membership of the EU without any political language that it can claim as its own in the democratic political space that Brexit has opened… Post-Delors Labour disavowed this political discourse in which British citizens possess by virtue of their membership of a historical political community ‘ancient liberties’ and ‘ancient rights’, including the right to choose freely their own parliament to decide upon the laws to which they are subject and by which their lives can be changed for the better. It also sacrificed a once politically potent story for the left arising from this narrative in which citizens had the potential through elections to make power responsive to their beliefs and interests, and in which the purpose of the Labour Party was to give them the chance to exercise that potential. In sum, by turning to European constitutionalism, Labour disowned an older faith of the left in the capacity of ordinary people to be part of democracy.

This gets to the heart of the matter. In reality it is a story of how the left rejected what we used to describe as ‘legal abstentionism’ – especially over the regulation of labour itself. Overall, institutions, citizenship, participation and the central role of democratic politics within a national polity were relegated to a subordinate position within the left compared to welfare, utility and rights. This collection explains how this happened.

The work of articulating a national renewal through the rebuilding of democratic institutions remains the central task of Labour today. Richard Tuck outlines in a compelling way how the constitutional forms of the EU subordinated democratic sovereignty in a unilateral way. Tuck explains that

The right way to theorise the EU… is as in effect a coordinated set of constitutional structures for each of the member countries … A set of principles and institutions are entrenched in a position beyond the reach of governmental legislation. They are entrenched within the legal order of each country. They cannot be amended by the same process as they were imposed. You can only repudiate the whole structure.

The essays outline a common position of great richness and seriousness. The abandonment of democratic participation and power in favour of rights and the sovereignty of judges meant that the left abandoned a politics of democratic transformation that could resist the domination of capital and the commodification of labour and land. The distinctiveness of the British polity, in term of parliamentary primacy due to the unique speed and timing of British industrialisation was over time subordinated to judicially-enforced treaty law that voided politics of power. Consequently, Tuck makes the point that the objection raised by the people during the EU referendum was not to immigration but to powerlessness. More generally, the warnings from America are profound. Gerald Rosenberg writes that:

…in the mid-twentieth century the Progressive agenda was hijacked by a group of elite, well-educated, and comparatively wealthy lawyers who uncritically believed that rights trump politics and that successfully arguing before judges is equivalent to building and sustaining political movements.

And they were indeed Trumped.

The rebuilding of a Labour politics built around the common good and a coalition between working class and middle class interests that can retrieve and strengthen what Thomson calls ‘a national political community’ with its own traditions and institutions after a half a century of technocratic and legal abandonment is daunting but necessary. But the clock is ticking. This collection offers the best possible starting point for the paradoxical politics of our time, not the least of which is that radicalism requires an appreciation of history and tradition. We used to know that. As such, the journey is one of self-discovery.